Amanda Tessar and Karen Lisko were quoted in the Law Week Colorado article, “Names and Narratives in Patent Jury Trials,” regarding a new study suggesting jury bias against non-practicing entities (NPE) and for accused infringers in declaratory judgment actions.

How NPE terms and allusions are handled in court varies by judge and jurisdiction and by motions in limine, according to Amanda Tessar. She often represents companies in high tech industries such as semiconductors and computers.

Tessar’s clients tend to be on the receiving end of NPE suits, and pointing out the NPE’s identity as such to jurors is important, she said. “On the defense side we always want it to matter and for jurors to care about this issue.”

The value of the patent itself also makes a big difference, according to Karen Lisko, and internal jury consultant and author of the book “Patently Persuasive: Strategies for influencing Judge and Jury.” She has interviewed over 2,000 mock and actual jurors, and often in patent cases.

“Jurors are trying to make sense of whether or not this is a good invention,” Lisko said. If jurors hear that the NPE is not using the patent, they are more likely to infer there isn’t much merit to the associated invention, which matters to them, she added. “I’ve heard that come from jurors a lot… ‘Is this invention a big deal or little deal?’”

When NPEs are in the courtroom, the defense’s use of terms has been more of a strategic call. “The defense may want to call them a troll, but in fact it can backfire,” Lisko said. “Jurors just don’t resonate with name-calling.”